Plaintiff, Ida Weldon, appeals from the trial court's granting
of the motion of defendant Reynolds T.
Hawkins1
for a directed finding and the denial of plaintiff's motion
for leave to file an amended complaint in a bench trial. Plaintiff,
a tenant of the building on the premises owned by defendant,
suffered injuries when she tripped and fell on weeds growing
through a concrete sidewalk located near the garage on
the premises. Plaintiff asserts that defendant's motion for
a directed finding should have been denied since the subject
matter of the motion was not pleaded in defendant's answer as
an affirmative defense, and since the case law relied on by
the trial court does not apply to plaintiff's action.
Plaintiff also contends that the trial court abused its
discretion in denying her motion for leave to amend her complaint
in order to conform the complaint to the proofs.

For the reasons stated below, we reverse the judgment of the
circuit court and remand this matter for further proceedings.

At trial, defendant testified that on October 3, 1984, the date
plaintiff incurred her injury, he owned the premises located
at 3559 West Medill in Chicago and owned and controlled the
area of the premises near the garage and garbage cans
where plaintiff fell. Defendant, who was in charge of
maintaining the premises, could not recall the last
time he cut down the weeds growing near the garbage cans.

Plaintiff testified that she had been a tenant of defendant for
approximately four months prior to her fall. On October 3, 1984,
she was taking out her garbage. She was wearing open-toed
sandals with a crepe sole. On her second trip down from
her third-floor apartment, she carried a box. After
placing the box in one of the cans, plaintiff turned and her
left foot was caught in the weeds growing at the corner of the
garage near the garbage cans. The weeds caught plaintiff's foot
and she fell, fracturing her ankle.

At trial plaintiff also called Carmen Ocon to testify. Ocon was
a former tenant of defendant who lived on defendant's premises
approximately three months before plaintiff's fall. Ocon
testified that defendant never cut down the weeds.

Photographs of the area where plaintiff fell were admitted into
evidence and are part of the record. The record indicates that
the weeds over which plaintiff fell were growing through spaces
or cracks between blocks of the concrete walkway that ran alongside
the garage on defendant's premises. The garbage cans were located
just past the garage on the walkway.

At the close of plaintiff's case, defendant moved for a directed
finding. Plaintiff filed a response to defendant's motion and
a motion for leave to file an amended complaint to conform to
the proofs. In her response to defendant's motion, plaintiff
cited section 99 — 9 of the Chicago Municipal Code (Chicago
Municipal Code § 99 — 9 (1984)), which declares weeds a
public nuisance and requires an owner of land to cut, pull, or
chemically treat weeds growing on the premises.

After a hearing on the motions of the parties, the trial court
entered an order granting defendant's motion for directed finding
and dismissing plaintiff's complaint with prejudice based upon
the holdings in
Burns v. Addison Golf Club, Inc.
(1987), 161 Ill. App. 3d 127, 514 N.E.2d 68,
and
Kostecki v. Pavlis
(1986), 140 Ill. App. 3d 176, 488 N.E.2d 644.
The court further denied plaintiff's motion
for leave to file an amended complaint.

Plaintiff initially contends on appeal that defendant's motion
for a directed finding should have been denied because defendant
raised for the first time in his motion for directed finding
the defense that the weeds are a natural condition on the land
which bars plaintiff's recovery. Plaintiff contends that defendant's
assertion that the weeds are a natural condition of the land
constitutes an affirmative defense, which must be pleaded in
an answer or be waived. We note that plaintiff has cited no case
law or statutory authority in support of this contention. We
find that defendant's failure to make such an assertion in his
answer was not in itself fatal to the motion for directed verdict.
Since we are reversing this matter on the grounds stated below,
however, we will not address further this contention raised by
plaintiff.

Generally, a landlord has a duty to exercise reasonable care
to keep the premises, including common areas used by tenants,
in a reasonably safe condition, and he is liable for an
injury for failure to perform such a duty.
(Kostecki v. Pavlis
(1986), 140 Ill. App. 3d 176, 488 N.E.2d 644.)
In the instant case, defendant moved for a directed
finding on the basis that the weeds were in
a natural condition on the premises and therefore defendant
had no duty to change the condition.

Section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat.
1987, ch. 110, par. 2-1110) provides that in a non-jury case,
where the defendant moves for a directed finding at the close
of the plaintiff's evidence, the court is to weigh the evidence
and determine the credibility of witnesses and the quality of
the evidence. The supreme court in
Kokinis v. Kotrich
(1980), 81 Ill. 2d 151, 407 N.E.2d 43,
stated that, contrary to the
Pedrick
standard
(Pedrick v. Peoria & Eastern R.R. Co.
(1967), 37 Ill. 2d 494, 229 N.E.2d 504),
when a defendant moves for a directed
finding in a bench trial, the trial court is not to view the
evidence in the light most favorable to the plaintiff. Rather,
the court must consider "all of the evidence, including any favorable
to the defendant, and is to pass on the credibility of witnesses,
draw reasonable inferences from the testimony, and generally
consider the weight and the quality of the evidence."
(Kokinis,
81 Ill. 2d at 154.)
The supreme court further explained that the trial
Judge must first determine whether the plaintiff has
established a prima facie case by presenting some evidence on
every element of his cause of action. If he has not, judgment
is appropriate in favor of the defendant. If the plaintiff has
made out a prima facie case, the trial Judge must then weigh
the evidence and determine if sufficient evidence remains to
support the plaintiff's prima facie case after weighing the evidence.
(Kokinis,
81 Ill. 2d at 154-55.)
The decision of the trial court should not be
reversed on appeal unless contrary to the manifest
weight of the evidence.
Kokinis,
81 Ill. 2d at 154.

In the instant case, the trial court considered, as a matter of
law, the question of whether the area of defendant's land where
the weeds were growing was in a natural condition. We find, however,
that the issue should have been treated as a question of fact
and that the trial court should have allowed evidence to be presented
by the parties regarding whether the weeds were in a natural
condition. Our review of case law indicates that the burden is
on plaintiff to show that the area of the premises containing
the weeds was not in a natural condition at the time of the accident.
(SeeLohan v. Walgreens Co.
(1986), 140 Ill. App. 3d 171, 488 N.E.2d 679;
McCann v. Bethesda Hospital
(1979), 80 Ill. App. 3d 544, 400 N.E.2d 16;
Bakeman v. Sears, Roebuck & Co.
(1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449.)
In the instant case, therefore, plaintiff should have
been allowed to present evidence regarding
whether the land containing the weeds was in an unnatural condition.
Accordingly, we must reverse the trial court's granting of the
motion of defendant for a directed finding and remand this matter
to the trial court for further proceedings. On remand, after
plaintiff is allowed to present evidence, if defendant at that
time presents a motion for directed finding, the trial court
then has a duty to consider whether the evidence is sufficient
to support a prima facie case for plaintiff. If sufficient evidence
has been presented, then the court must weigh the evidence to
determine whether sufficient evidence remains to support plaintiff's
prima facie case. If sufficient evidence remains, then the court
must deny defendant's motion for directed finding.
SeeKokinis,
81 Ill. 2d at 154-55.

Further, we find that
Burns v. Addison Golf Club, Inc.
(1987), 161 Ill. App. 3d 127, 514 N.E.2d 68,
relied on by the trial court, actually supports the Conclusion
reached here that whether the area of the premises
containing the weeds was in a natural condition is
a factual question. In
Burns,
the appellate court affirmed an order granting summary
judgment in favor of the defendant owner of a
golf course on which the plaintiff was injured
when she tripped and fell over the exposed root of a tree. The
plaintiff asserted on appeal that the defendant failed to show
that the land with the exposed tree root was in a natural condition
at the time of the injury, leaving a disputed factual issue.
In addition, the plaintiff asserted that the trial court
erred in finding, as a matter of law, that the defendant
did not owe the plaintiff a duty of care to warn
or protect the plaintiff from the natural condition
of the land containing the exposed root.

The appellate court held that the trial court properly granted
summary judgment, as there remained no material issue of fact
as to the natural condition of the land containing the tree root.
The appellate court stated that the evidence failed to show that
the plaintiff was injured as a result of an unnatural
condition of the defendant's premises. The appellate court
reviewed the evidence presented to the trial court, including
an affidavit, submitted by the plaintiff, of
Alan Caskey, Ph.D., a person familiar with the design, construction,
maintenance, and operation of golf courses, who viewed photographs
of the tree over which the plaintiff fell. Caskey's affidavit
stated that the roots of the kind of tree involved in the accident
tend to surface during drought conditions and that the condition
of the tree in question "'would require months of drought and
foot traffic.'"
(Burns,
161 Ill. App. 3d at 130.)
The appellate court stated that the plaintiff failed to
present any other evidence to show that the land containing
the exposed tree root was in an unnatural condition, and
further, that the affidavit failed to conflict with the
court's Conclusion that no factual issue remained as
to the natural condition of the land. Noting that
uncontradicted facts in an affidavit must be taken as true for
the purpose of a motion for summary judgment, the court upheld
the grant of summary judgment for the defendant.
Burns,
161 Ill. App. 3d at 130.

On the issue of whether the trial court erred in finding, as a
matter of law, that the tree roots did not constitute a legal
defect to support a negligence action, the appellate
court relied on its earlier holding that the exposed
roots were a natural condition of the premises. The
court then analogized the circumstances of the
Burns
case to those where a person slips on ice, snow, or water.
The court cited well-established Illinois law that no
liability exists for injuries resulting from a fall
on snow or ice which has accumulated from natural causes where
the accumulation or condition is not aggravated by the owner
of the premises.
(Burns,
161 Ill. App. 3d at 130.)
In the instant case, the trial court must first determine the
factual matter of whether the area of the premises containing
the weeds was in a natural condition prior to determining
whether defendant may ultimately be liable for plaintiff's injuries.

In addition, we agree with plaintiff that
Kostecki v. Pavlis
(1986), 140 Ill. App. 3d 176, 488 N.E.2d 644,
also referred to by the trial court in the instant case,
is distinguishable and not controlling.
In
Kostecki
the appellate court affirmed a summary judgment order
granted in favor of the defendant owners of premises on which
the plaintiff's minor child was injured when her arm went
through a glass door. The court stated that the landlord was
not liable for the injuries, which were not reasonably foreseeable,
where the plaintiff pleaded no facts indicating that defendants
knew or had reason to know the door was defective.
(Kostecki,
140 Ill. App. 3d at 180.)
The issue of constructive knowledge in Kostecki is not present
in the instant case, since defendant here does not contest the
assertion that he was aware of the weeds.

Monick v. Town of Greenwich
(1957), 144 Conn. 608, 136 A.2d 501,
cited by plaintiff and considered by the trial court, also is
distinguishable from the instant case. In
Monick,
the plaintiff sought recovery for injuries
suffered when she tripped over the roots of a tree located on
a public roadway. The defendant had widened the street along
which the tree was growing. In order to avoid destruction of
the ancient tree, the defendant relocated the curb so that the
area where the tree was standing projected five or six feet into
the traveled portion of the highway, into an area where parking
of automobiles was allowed.

The trial court held that the plaintiff failed to establish that
the roadway was defective. The court found, however, that the
evidence was sufficient to show that the condition of the roots
constituted a nuisance. The defendant appealed, contending that
the trial court erred in reaching its decision on the facts established.
The appellate court held that the trial court's Conclusion that
the condition constituted an intentional nuisance was supported
by the evidence.
(Monick,
144 Conn. at 611, 136 A.2d at 503.)
In the instant case, by contrast, there is no allegation of intentional
conduct by defendant to change the condition of the land or other
conduct or conditions to establish a nuisance.
Monick,
therefore, is not persuasive regarding the instant case.

Plaintiff also contends that section 99 — 9 of the Municipal
Code makes clear that defendant owed a duty to plaintiff to remove
the weeds. We will address this issue in view of the likelihood
that it would be raised again upon remand of this matter to the
trial court. Section 99 — 9 of the Municipal Code provides:

"All weeds including weeds which due to pollination are a menace
to health and weeds otherwise injurious to public health
or welfare are hereby declared to be a public nuisance.

It shall be unlawful for any person owning or controlling any
plot of ground to permit the growth of such weeds thereon.

All such weeds shall be cut, pulled, destroyed or chemically
sprayed with 2,4 — D sprays or other equally efficient
chemical weed killer by the owner or person in control of
said plot of ground at least twice a year, once between
May 1 and June 15 and once between July 15 and August 1, of each year.

The failure to destroy such weeds within the designated periods
shall constitute a violation of this section.

When the owner or person in control of any plot of ground fails
to destroy or spray weeds growing thereon as provided herein,
the city official charged with the enforcement of this section
shall destroy the said weeds, and any expense incurred by the
city in so doing shall be a charge against the owner so failing,
which may be recovered in an appropriate action in law instituted
by the corporation counsel."
Chicago Municipal Code § 99 — 9 (1984).

We hold that the trial court was correct in finding that the
ordinance did not apply to plaintiff's case. As a rule,
"courts apply the same rules of construction to municipal
ordinances as they do to statutes."
(Village of Schaumburg v. Franberg
(1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239;
see alsoKostecki v. Pavlis
(1986), 140 Ill. App. 3d 176, 488 N.E.2d 644.)
The language of the ordinance indicates that the legislative
intent was to protect the public against the effect of
weeds as a result of their pollination. As was noted
in the trial court in the instant case, the pollination
process of weeds may cause harm to the public who suffer from
allergies or other similar ailments. The cited ordinance does
not, explicitly or implicitly, indicate that the injuries
sustained by plaintiff were contemplated by the legislature.
The ordinance provides for spraying of weeds twice yearly, in
order to protect the public against the contemplated threat to
health due to pollination. The facts of the instant case do not
constitute circumstances which the ordinance sought to remedy
by the spraying of weeds. The ordinance does not contemplate
the kind of injuries suffered by plaintiff here.
SeeNey v. Yellow Cab Co.
(1954), 2 Ill. 2d 74, 117 N.E.2d 74;
Brunnworth v. Kerens-Donnewald Coal Co.
(1913), 260 Ill. 202, 103 N.E. 178.

Finally, plaintiff contends that the trial court abused its discretion
by refusing to allow plaintiff leave to amend her complaint to
conform to the proof by pleading a violation of the municipal
ordinance (Chicago Municipal Code § 99 — 9 (1984)).

Section 2-616 of the Code of Civil Procedure allows for amendment
of pleadings "[at] any time before final judgment . . . on just
and reasonable terms." (Ill. Rev. Stat. 1987, ch. 110, par. 2-616.)
The courts have set forth a rule providing for the liberal amendment
to pleadings.
(SeeBlazina v. Blazina
(1976), 42 Ill. App. 3d 159, 356 N.E.2d 164.)
The granting or denial of a motion to amend
pleadings is within the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of that discretion.
(Blazina,
42 Ill. App. 3d at 165.)
Once a trial has begun, an amendment ordinarily should
not be permitted for matters of which the pleader
had full knowledge at the time of filing of the original
pleading and no excuse is presented for omitting the substance
of the amendment from the original pleading.
(Bresland v. Ideal Roller & Graphics Co.
(1986), 150 Ill. App. 3d 445, 501 N.E.2d 830.)
This is true especially where the amendment is prejudicial
or would alter the nature and quality of proof required to defend.
(Bresland,
150 Ill. App. 3d at 450-51.)
The most important consideration in determining whether
an amendment should be allowed is whether the amendment
will be in furtherance of Justice.
Bresland,
150 Ill. App. 3d at 450.

We find no abuse of discretion by the trial court in denying
plaintiff's motion to amend citing to the ordinance. As stated above, we
have held that the trial court properly determined that section
99 — 9 of the Municipal Code did not apply to plaintiff's action.
Substantial Justice therefore was not violated by the court's
refusal to allow plaintiff to amend her complaint.

For the foregoing reasons, we reverse the judgment of the circuit
court and remand this matter for further proceedings.

Judgment reversed and cause remanded.

Footnotes:

*
Justice McNamara participated in the decision of this case
prior to his assignment to the sixth division.
[Back]

1.
Co-defendant Marylena Hawkins, who is deceased, was dismissed
from the case by the trial court on August 16, 1985.
[Back]